American Feed Co.

National Labor Relations Board - Board Decisions

Sep 20, 1961

133 N.L.R.B. 214 (N.L.R.B. 1961)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concern were performing work . On that date Orville Metzler , an agent of the
Respondent Union, came to the site . When he was unsuccessful in persuading
Layne's two employees to cease work, Metzler told Paulson 's general superintendent,
Mike Paulson , that unless Layne-Western were removed from the job the Union
would shut him (Paulson ) down . Later in the day Union Agent Goebel told
Paulson that while the Union would not "strike him" then , he must not hire Layne-
Western again or there would be trouble . Goebel also told Layne •Western's Field
Superintendent , Ralph Dyas , that the Union would shut his employer down if it did
not get a contract signed.
Thereafter the Union sent a letter to contractors in the Omaha area, no one of
whom is established by the record to be engaged in commerce within the meaning
of the Act , advising them that "the presence of Layne-Western Company on any
job will create legal and economic problems for the members of our Union."
B. Conclusions
In pertinent summary the foregoing findings of fact are established by the record
and are urged by General Counsel as supporting the allegations of the complaint
that by such conduct the Respondent Union "threatened , coerced , or restrained"
Paulson , Hanighen , Rocco-Ferrera, "and other persons . . . engaged in commerce
or in an industry affecting commerce ," to cease doing business with Layne-Western,
and for an unlawful object-forcing Layne-Western to "recognize or bargain" with it.
The Trial Examiner believes it unnecessary here to draw hypothetical conclusions
in view of his recommendation of dismissal on commerce grounds.
In section 3, above, it has been noted that there is no evidence of a factual nature
or in monetary terms regarding the extent , if any, that Paulson , Hanighen , or Rocco-
Ferrera are engaged in commerce . There being no facts, the Trial Examiner
believes there is no foundation for commerce conclusions . And such conclusions
must be made , in the opinion of the Trial Examiner , if violation of the section in-
voked is to be found . Section 8 (b) (4) (ii ) states in no ambiguous language:
to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce . . . . [Emphasis supplied.]
Some 2 ,000 years ago a reputable Greek 2 noted that there is no authority except
facts , that facts are to be obtained from accurate observation , and conclusions are
to be drawn only from facts . It is a bit out of order , it seems to the Trial Examiner,
for him to overrule this ancient logic.
There being no facts visible in the record , the Trial Examiner declines to draw
the conclusion that any of the named employers-except the primary employer-
are engaged in commerce or in an industry affecting commerce.
For this reason it will be recommended that the complaint in its entirety be
dismissed.
[Recommendations omitted from publication.]
' Hippocrates.
Mary Feifer, d/b/a American Feed Company and Merchandis-
ing and Distribution Employees Union Local 210, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Ind. and Arthur Faison . Case No. 2-CE-4.
September 20, 1961
DECISION AND ORDER
On May 16, 1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had not engaged in unfair labor practices, as set forth
in the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
133 NLRB No. 23.
AMERICAN FEED COMPANY 215
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, only insofar as they
are consistent with this Decision and Order.
The Trial Examiner found that the Employer and the Union did
not violate Section 8 (e) by entering into a collective-bargaining con-
tract containing an otherwise unlawful hot cargo clause (article 16 of
the contract) 1 absent evidence of any request or attempt by the
Union to enforce that contract provision. We disagree. A study of
the legislative history of the Act reveals that the chief objective of
Section 8 (3) was the closing of the so-called Sand Door 2 loophole. In
Sand Door the Supreme Court held that the "hot cargo" clause could
not be used as a defense to a charge of inducement of employees to re-
fuse to handle goods for objects proscribed by Section 8(b) (4) (A)
but it also held that it was not unlawful for an employer to agree that
his employees would not be required in futuro to handle such goods
and might voluntarily support such a boycott by acquiescence.' It
was such agreement to support secondary boycotts that 8 (e) was
specifically designed to prohibit. Under these circumstances we find
that the Congress, by use of the words "to enter into zany contract or
agreement," intended to make the signing or execution of any such
contract an unfair labor practice. In fact, the words "sign" and
"enter into" were used interchangeably during the congressional de-
bates and in congressional reports 4 We think that in both general
and legal usage the words "enter into," used with reference to con-
tracts or agreement, covers the conduct in issue here.5
1 In finding the clause unlawful , we rely only on the second sentence of the clause as set
forth in the Intermediate Report, which is the provision the Board found unlawful in
American Feed Company, 129 NLRB 321. See also The Humko Co., Inc ., 121 NLRB 1414,
General Drivers, Chauffeurs, Warehousemen and Helpers, Local No 886 , et at ( American
Iron and Machine Works Company ), 115 NLRB 800, and . as to Local 850, IAM , 357 U.S 93.
2 Local 1976, United Brotherhood of Carpenters and Joiners of America , AFL, et al.
( Sand Door d Plywood Co.), 113 NLRB 1210 , af3d. 357 U.S. 93.
8 The debates indicate congressional awareness that coercion might be applied to secure
such acquiescence by contractual agreement.
* Senator Morse , in attacking the "hot cargo " ban in the Kennedy-Ervin bill, vol. II,
Legislative History, page 1428, stated that the bill made it illegal "to sign a hot cargo"
provision ( in the trucking industry ). Senator Dirksen submitting his "Report of the
Minority Leader of the 1st Session of the 86th Congress " referred to the Landrum-Griffin
bill as passed by the Congress, as making it "an unfair labor practice for an employer and
a union to sign a so-called `hot cargo ' contract."
6 Webster 's New International Dictionary ( 1933 ) defines "enter" as:
3. To make a beginning ; to take the first steps : engage ; start ; as to enter busi-
ness ; to enter upon a career ; also to get admission or be admitted ; as to enter
society; to enter upon holy orders.
4. To make one 's self a party ; with into, formerly also in; as to enter upon a
treaty of peace.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The legislative history rather clearly shows that the Congress was
intent upon banning the entry into such contracts, thereby freeing the
employer from such pressures and coercion as a union might exert to
obtain contractural assent to prospective secondary boycotts. Thus
Senator McClellan, in asserting a necessity for the outlawing of "hot
cargo" clauses, made reference to the nonlegal effect of such a clause
as "a gentleman's agreement providing moral suasion against an
employer." The moral suasion which the Senator thought should be
excluded 'as encouraging secondary boycotts by employer-union agree-
ment could only be removed by attack at the initial stage, the making
or entering into of the contract. 'Once the contract was signed moral
suasion came into being. Both Senators McClellan and Kennedy and
Congressman Shelley referred to Section 8 (e) as "outlawing" 6 the
"hot cargo" clause. We think the use of such language indicates the
intent to make "hot cargo" contracts unlawful at inception without
evidence of implementation either by request or coercion. The con-
struction given by the Trial Examiner, we feel, leaves the law as stated
by the Supreme Court in Sand Door, supra, the congressional intent to
close the Sand Door loophole notwithstanding.
Accordingly, we find the act of entering into, signing, executing, or
making 'a contract, either express or implied, prohibited by Section
8 (e) sufficient to establish a violation of that section.
Having found that the Respondents, Mary Feifer, d/b/a American
Feed Company, and Merchandising and Distribution Employees
Union Local 210, violated Section 8(e) of the Act by entering into a
contract whereby the Employer agreed to cease or refrain from
handling, using, selling, transporting, or otherwise dealing in any
of the products of another employer, or to cease doing business with
any other person, we shall order the Respondents to cease and desist
from maintaining in effect, implementing, or renewing the aforesaid
part of article 16 of the contract entered into by them on June 3, 1960.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Mary Feifer,
d/b/a American Feed Company, and Merchandising and Distribution
Employees Union Local 210, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ind., their
officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into any contract, express or implied, whereby Ameri-
can Feed Company agrees not to handle or perform services on goods,
6 Webster, id. defines "outlaw" as : "2. To remove from legal jurisdiction or enforcement "
AMERICAN FEED COMPANY 217
products or materials from or going to the premises of any other em-
ployer or person.
(b) Maintaining in effect, implementing, or renewing article 16 of
the contract signed June 3, 1960, to the extent found unlawful herein.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Respondent American Feed Company shall post at its offices
in the Borough of the Bronx, city and State of New York, copies of
the notice attached hereto marked "Appendix A." Respondent Mer-
chandising and Distribution Employees Union Local 210 shall post
at its offices, places of business, and meeting places in the city and State
of New York, copies of the notice attached hereto marked "Appendix
B."' Copies of said notices, to be furnished by the Regional Director
for the Second Region, shall, after having been duly signed by Re-
spondent Mary Feifer, d/b/a American Feed Company, and by Re-
spondent Merchandising and Distribution Employees Union Local
210's authorized representative, be posted by Respondents immediately
upon receipt thereof, and be maintained by them for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where Respondent American Feed Company's notices to employees
are customarily posted and at all places where Respondent Merchan-
dising and Distribution Employees Union Local 210's notices to mem-
bers are customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered, defaced, or
covered by other material.
(b) Respondents shall notify the Regional Director for the Second
Region, in writing, within 10 days from the date of this Order, what
steps they have taken to comply herewith.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959, we hereby notify you that :
WE WILL NOT enter into any contract or agreement, express or
implied, with Merchandising and Distribution Employees Union
Local 210, whereby we agree not to handle or perform services on
goods, products, or materials from or going to the premises of
any other employer or person.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain in effect, implement, or renew article 16
of our contract with Merchandising and Distribution Employees
Union Local 210, signed June 3, 1960, to the extent said article is
found unlawful by the Decision and Order herein.
MARY FEIFER, D/B/A AMERICAN
FEED COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959, we hereby notify you that :
WE WILL NOT enter into any contract or agreement, express or
implied, with Mary Feifer, d/b/a American Feed Company,
whereby such employer agrees not to handle or perform services
on goods, products, or materials from or going to the premises of
any other employer or person.
AVE WILL NOT maintain in effect, implement, or renew article 16
of our contract with Mary Feifer, d/b/a American Feed Com-
pany, signed June 3, 1960, to the extent found unlawful by the
Decision and Order herein.
MERCHANDISING AND DISTRIBUTION
EMPLOYEES UNION LOCAL 210,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended (61 Stat . 131, 136 ; 73 Stat. 519 (Public Law 86-257 , 1959 ) ), herein
called the Act.
Upon a charge filed by Arthur Faison , an individual , on October 20, 1960, the
General Counsel of the National Labor Relations Board on behalf of the Board,
by the Regional Director for the Second Region , issued a complaint and notice of
hearing on November 9, 1960, against Mary Feifer, d/b/a American Feed Com-
AMERICAN FEED COMPANY 219
pany (herein called the Company), and Merchandising and Distribution Employees
Union Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind. (herein called the Union). The complaint al-
leges that the Company and the Union have committed unfair labor practices within
the meaning of Section 8(e) and Section 2(6) and (7) of the Act. Section 8(e)
was added to the Act by Section 705(b), Title 7 of the Labor-Management Reporting
and Disclosure Act of 1959 (Public Law 86-257, 1959), the law being approved
September 14, 1959, and Section 8(e) becoming effective November 13, 1959.
The pertinent part of Section 8(e) reads as follows:
(e) It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from handling,
using, selling, transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person, and any con-
tract or agreement entered into heretofore or hereafter containing such an
agreement shall be to such extent unenforcible and void: .. .
The complaint alleges that the violations are based upon the following acts and
conduct-that on or about June 3, 1960, Respondent Employer and Respondent
Union entered into a written agreement, providing, inter alia,
Anything herein contained to the contrary notwithstanding, it shall not be a
violation of this agreement and it shall not be cause for discharge or discipline,
if any employee or employees refuse to go through a picket line of any union.
There is hereby excluded from the job duties, course of employment or work of
employees covered by this agreement, any work whatsoever in connection with
the handling or performing any service whatsoever on goods, products or ma-
terials coming from or going to the premises of an employer where there is any
controversy with a Union;
that this agreement has, at all times material, been maintained in full force and effect,
and that by this agreement, Respondent Employer has agreed to cease and refrain
from handling, using, selling, transporting, or otherwise dealing in the products of
other employers, and to cease doing business with other persons.
The Respondent Union and the Respondent Company each filed a timely answer
to the complaint, denying violations of the Act.
This case was heard by the duly, designated Trial Examiner at New York, New
York, on January 11, 1961. At the hearing the General Counsel, the Company, and
the Union were represented by counsel and each party was accorded full participation
in the hearing pursuant to the Rules of the Board. The General Counsel and the
Respondent Union by counsel submitted written briefs to the Trial Examiner.
Upon the entire record in this case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Mary Feifer, the Respondent Employer, is, and has been at all times material
herein, an individual proprietor doing business under the trade name and style of
American Feed Company. At all times material herein, the Respondent Employer
has maintained a principal office, plant, and place of business at West 177th Street
and the Harlem River, in the Borough of the Bronx, city and State of New York,
where she is, and has been, engaged in the business of processing bakery salvage for
use in the sale and distribution of animal feed and related products. During the
year immediately preceding the filing of the complaint herein, the Respondent Em-
ployer in the course and conduct of her business operations, manufactured, pro-
cessed, sold, and distributed at the Bronx plant, products valued in excess of
$500,000, of which products valued in excess of $50,000 were shipped from the
Bronx plant directly to States of the United States other than the State of New York
wherein Respondent Employer is located.
Respondent Employer is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Merchandising and Distribution Employees Union Local 210, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind.,
is, and has been at all times material herein , a labor organization within the meaning
of Section 2(5) of the Act.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in. THE (ALLEGED) UNFAIR LABOR PRACTICES
On February 3, 1959, the Company and the Union entered into a collective-
bargaining agreement which by its terms was to run until June 8, 1960. That agree-
ment contained a provision (article 16), a "hot cargo" clause made illegal by the
subsequent approval of Section 8(e) of the Act. The parties to that agreement, in
October 1959, during the time interval between the approval of the Landrum-Griffin
Act (Public Law 86-257, 1959) and the effective date of Section 8(e), by an ex-
change of letters voided and vacated from the agreement that article 16, declaring
it to be of no force and effect. On May 20, 1960, the same parties executed a
memorandum of agreement which incorporated important changes in the provisions
of the February 3, 1959, agreement regarding wages, vacations, and night and day
wage differentials. This memorandum provided that "the present contract dated
February 3, 1959, and amended on October 20, 1959, is renewed until June 8, 1962,
with the following changes [etc.]" and that "in all other respects the February 3, 1959,
contract as changed in October 1959, shall continue to June 8, 1962." The most
important provision of this memorandum, in respect of the instant case, provided
for a new article 16 to replace the old "hot cargo" clause, the new article 16 being as
quoted above from the complaint herein, in a more formal document signed by the
parties on June 3, 1960, incorporating the agreement of the parties into one whole
document, that agreement being the current agreement which by its terms is to expire
on June 8, 1962, "the parties to start negotiations 60 days or more prior to that ex-
piration date for a new contract." Without regard to the position of the Company
and the Union that the current agreement became effective upon the execution of the
memorandum of agreement on May 20, 1960, it has been stipulated between counsel
that for the purposes of the instant case the contract containing the new article 16
(the so-called "hot cargo" clause) has been in force and effect since June 3, 1960,
and is still in effect and has not been changed in any way.'
At the hearing, I allowed testimony from Frank Gold, the director and an official
of the Union, to testify that from June 3, 1960, up to the day of hearing, no one on
behalf of the Union had asked the Employer to enforce article 16; and also allowed
the testimony of Herbert Miskind, general manager of the Respondent Company,
that since June 3, 1960, and up to the date of the hearing no one on behalf of the
Respondent Union had asked him or anyone else representing the Company to
enforce article 16. The objection of the General Counsel was based on his con-
tention "that the mere entering into it and thereafter maintaining of such a contract in
itself constitutes a violation of Section 8(e)." The General Counsel in his brief has
stated the precise question presented, which he would have answered in the
affirmative:
Is the provision referred to above an agreement by Respondent Employer to
cease and refrain from handling, using, selling, transporting or otherwise deal-
ing in the products of other employers, and to cease doing business with other
persons within the meaning of Section 8(e) of the Act and, if so, did Respondent
Employer and Respondent Union, by entering into this agreement, and there-
after maintaining it in full force and effect, violate Section 8(e) of the Act?
It would seem that the General Counsel is correct in his contention if the mere
entering into of the agreement containing the new article 16 constitutes a prima facie
violation of the Act. In American Feed Company, 129 NLRB 321, the Board, sub-
sequent to the effective date of Section 8(e), had occasion to examine the new article
16 in the June 3, 1960, contract, this being a representation case in which the same
employer and the same union were parties. There, the Board found that the clause
'The June 3, 1961, agreement contains a saving clause (article 25) as follows :
SAVING CLAUSE : To the best knowledge and belief of the parties, this contract
contains no provision which is contrary to Federal or State Law or Regulations.
Should, however, any provision of this agreement, at any time during the period pro-
vided for in said agreement , be in conflict with Federal or State Law or Regulations,
the parties agree to negotiate with respect to such provision, and said provision
shall continue in effect for the time being only to the extent permitted under such
Federal or State Law or Regulations In the event that any agreement is thus held
inoperative, the remaining provisions of the agreement shall, nevertheless, remain in
full force and effect. In the event of such occurrence, the parties agreed to meet
immediately and, if possible, to negotiate further provisions for such part or portions
rendered or declared illegal or invalid The remaining parts, portions or provisions
shall remain in full force and effect Should the parties be unable to negotiate such
further provisions as hereinabove provided, the matter shall be referred to arbitration
pursuant to the terms of this agreement.
AMERICAN FEED COMPANY 221
is a hot cargo clause in violation of Section 8(e) of the Act and therefore the con-
tract containing this illegal clause does not bar an election. The Board decision says,
in part:
A majority of the Board recently held that a contract which contains a
"hot cargo" clause violative of Section 8(e), like contracts which contain clauses
in violation of Section 8(a) (3), is not a bar,-and further held that it would not
recognize a savings clause of the type here involved as curing the contract bar
defect. (Citing Pilgrim Furniture Company, Inc., 128 NLRB 910.)
Moreover, the Board has also ruled that clauses such as the one herein con-
stitute "hot cargo" clauses. (Citing The Humko Co., Inc., 121 NLRB 1414.)
As the "hot cargo" clause in the contract asserted as a bar is violative of
Section 8(e), we find the contract does not bar an election.. . .
The Respondent Union argues that the decision of the Board in the representation
case is not a determination that article 16 is a violation of Section 8(e) of the Act.
It argues that the representation case 129 NLRB 321, Pilgrim Furniture Company,
128 NLRB 910, and Local 1545, Carpenters Union v. Vincent, 286 F. 2d 127
(C.A. 2), do not help the position of the General Counsel because they stand only
for the proposition that a contract with an unlawful hot cargo clause will not be
recognized by the Board for contract-bar purposes.
The Respondent Union says that because Section 8(e) makes it an unfair labor
practice for any labor organization and any employer to enter into any agreement
under which such employer agrees to cease or refrain from handling (etc.) of any
other employer, or to cease doing business with any other person, and further, be-
cause article 16 relates only to the conduct and job duties of employees of the
employer, the employer and the Union have not "entered into an agreement" in
contravention of Section 8(e). Or, as stated by counsel for the Respondent in brief:
it conclusively appears that Section 8(e) of the Act was enacted as part
of the legislative program to close the loopholes existing in dealing with sec-
ondary boycott situations.
In our' case there is no secondary boycott activity involved. Article 16 deals
with primary activities and rights of employees. The clause in question does
not act as a prohibition against the employer. Mary Feifer as the employer of
all of her supervisory employees, as well as employees not within the bargaining
unit, are not prohibited by the terms of Article 16 from handling or dealing
in the products of other employers?
The General Counsel says, I think correctly, that all the legislative history of the
1947 enactment of the Labor Management Relations Act shows the clear intent of
Congress to declare secondary boycotts illegal but that however, since that time,
several ambiguities in wording have enabled labor organizations to avoid violating
the Act by careful maneuvering while still creating secondary boycott situations. He
says further that Congress called these ambiguities "loopholes" and that the 1959
Amendments including Section 8(e) endeavored to "plug up" these "loopholes,"
particularly contract provisions under which an employer agreed to limit his future
freedom of choice regarding the handling of "hot cargo." He says that the Con-
gress recognized, in enacting the 1959 Amendments, that hot cargo clauses are not
usually worded in the exact terms of Section 8(e) but that the clause may provide
that employees are not required to handle products deemed unfair by the union, or
that it shall not be a violation of a no-strike clause or cause for discharge if such
a refusal occurs. He says further in support of his contention that the mere writing
and agreeing to such a provision by a labor organization and an employer constitutes
a prima facie violation of Section 8(e) that "whatever the inversion, variation, per-
mutation or commination of the basic unlawful scheme and however disguised or
camouflaged, the Congress clearly intended such hot cargo agreements to be illegal."
He says further that whatever the language, if the agreement has the effect of re-
quiring an employer not to handle "unfair" goods, it would be precluded by Section
2 In my Intermediate Report, Cases Nos. 2-CA-7594, et al, and 2-CB-3013, 3017, et at.,
129 NLRB 321, filed simultaneously with this Intermediate Report, I find the collective
agreement of June 3, 1961, to be valid and in force except as to article 16. As to that
article, I said that I considered myself to be bound by the decision of the Board in 129
NLRB 321. My findings and recommendation in that Intermediate Report have to do
with alleged violations of Section 8(a) (1), (2), and (3) and Section 8(b) (1) (A) and
(b) (2) of the Act; I did not consider the invalidity of article 16, as found by the Board,
to have reached the Section 8(e) question in these unfair labor practice cases
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(e) of the Act. As pointed out, the Respondent takes issue with this and expressly
argues , and forcefully, that article 16 in the current agreement between the Com-
pany and the Union here involved, clearly shows that the article or clause deals
with primary activities and rights of employees.
The Respondent, too, has looked at legislative history, and inevitably refers to
Section 8(b) (4) which, prior to the 1959 Amendment, read in pertinent part:
(4) (i) to engage in, or to induce or encourage the employees of any employer
to engage in, a strike or a concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials , or commodities or to perform any services where an
object thereof is:
(A) forcing or requiring any employer or self-employed person to join any
labor or employer organization or any employer or other person to cease using,
selling, handling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing business with
any other person; ... .
Section 8(b) (4) (1) (A) as amended in 1959 now reads:
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce to en-
gage in, a strike or a refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any service; or (ii) threaten, coerce,
or restrain any person engaged in commerce or in an industry affecting com-
merce, where in either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any
labor or employer organization or to enter into any agreement which is pro-
hibited by Section 8(e); . .. .
(The Respondent Union points out that while such terms as "primary," "second-
ary," and "neutral" did not appear in Section 8(b)(4), that read literally, Section
8(b)(4) banned not only secondary boycotts but also circumscribed primary ac-
tivities, and yet the courts found that Section 8(b) (4) did not impair the right to
engage in primary activity against the primary employer.)
I agree, as stated by both the General Counsel and the Respondent Union, that
Section 704 of the Landrum-Griffin Act is intended to close the loopholes existing
in Section 8(b)(4) of the Act as it read before such amendment. It seems clear
that a "hot cargo" clause cannot be urged as a defense to a violation of Section
8(b) (4), Congress having affirmed that such clauses "shall be to such extent un-
enforceable and void."
The Respondent Union in its brief says:
The legislative history indicates that 8(e) was passed with the following back-
ground concerning "hot cargo" clauses in their application under 8 (b)(4).
1. Such clauses are not contrary to public policy. Local 1976 v. NLRB, 357
U.S. 93. Sand Door & Plywood Co., 113 NLRB 1210.
2. There is no violation of 8(b)(4) where an employer voluntarily agrees
to abide by such a clause. McAllister Transfer, Inc., 110 NLRB 1769.
3. Such a clause is at war with 8(b) (4).
4. In Sand Door in the Supreme Court, the Board in its argument (26 USLW
3261) took the position that the Act does not declare such clauses to be illegal
nor does the Act make it an unfair labor practice.
I agree with conclusions No. 1 and No. 2 as above; I do not agree with con-
clusion No. 3 and I think that conclusion No. 4 is immaterial to the question to be
decided herein.
Those parts of the legislative history of Section 8(e) relied upon by counsel and
referred to in their briefs have been carefully considered. I am cognizant of the
excellent analysis by the Trial Examiner in Van Transport Lines, Intermediate Report
No. 188, issued July 20, 1960,3 I have made my own search through legislative
history and have about concluded that there were, when the amendments were being
discussed, about as many different views expressed as there were legislators who
expressed them.
8 The Board in the absence of specific exceptions adopted pro forma the Trial Examiner's
finding that the Respondent Union violated Section 8(e) in Van Transport Lines, 131
NLRB 242 . The Board has not passed directly on the question of whether the making of
a Section 8(e) agreement is an unfair labor practice per se
AMERICAN FEED COMPANY 223
The Landrum-Griffin Bill (HR 8400) as introduced and as passed by the House
(Section 704) provided in the part pertinent to this dicussion:
(b) (1) Section 8 of the National Labor Relations Act, as amended , is amended
by adding at the end thereof the following new subsection:
(e) It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from handling,
using, selling , transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person, and any
collective bargaining contract entered into heretofore or hereafter containing
such an agreement shall be to such extent unenforceable and void.
(2) Any contract or agreement between an employer and a labor organi-
zation, heretofore or hereafter executed which is, or which calls upon anyone
to engage in, an unfair labor practice under Section 8(e) of the National Labor
Relations Act, as amended , shall to such extent be unenforceable and void.
The bill with the above-quoted provisions, was sent to conference.4 The bill,
after conference and as finally enacted, did not contain the provisions of sub-
division (2) as passed by the House.
The striking of subdivision (2) and its word "executed" must be taken as signifi-
cant . Equally significant is the retention of the word "enter" in Section 8(e).
The common dictionary definitions of the word " enter" in the usual sense import
a start or a beginning, or a participation, as "to go or come in, to a place or con-
dition." The word "execute" means, in dictionary language , to follow out or through
to the end, as a purpose; to complete; effect; perform or to give effect to, or to do
what is provided or required to give validity to a deed, or a will, or a contract.
It would seem that if the word "executed" had been retained in its first context in
Section 704(b) or substituted for the word " enter" in Section 8(e) the execution or
the signing and delivery of the agreement by each party might have described an
unfair labor practice per se.
I find help in the decision of the Supreme Court in the Sand Door case.5 In that
case Mr. Justice Frankfurter wrote (page 98) :
Whatever may have been said in Congress preceding the passage of the Taft-
Hartley Act [Labor Management Relations Act of 1947] concerning the evil
of all forms of "secondary boycotts" and the desirability of outlawing them, it is
clear that no such sweeping prohibition was in fact enacted in Section
8(b)(4)(A). The section does not speak generally of secondary boycotts.
It describes and condemns specific union conduct directed to specific objectives.
It forbids a union to induce employees- to strike against or to refuse to handle
goods for their employer when an object is to force him or another person to
cease doing business with some third party. Employees must be induced; they
must be induced to engage in a strike or concerted refusal; an object must be
to force or require their employer or another person to cease doing business
with a third person.
The provisions of article 16 of the contract here under consideration do not
"induce employees"; the language does permit them to refuse to go through a picket
line or to handle or perform services on goods , etc. What is the result, therefore,
if an occasion never arises where an employee may elect not to go through a picket
line or not to handle or perform any service on goods, etc.? There the provision
stands, and I agree, as I must, after 129 NLRB 321, that it is that kind of a "hot
cargo" clause intended to be affected by Section 8(e).
Brown, Regional Director v. Local 17, Amalgamated Lithographers of America
et al., 180 F. Supp. 294 (D.C.N. Calif.), affords a clue to whether article 16, standing
alone in the contract, is a per se violation of Section 8(e), or whether it provides a
vehicle to prevent the continued illegal exercise of the elective rights given to em-
ployees thereunder by a Section 10(b) or 10(1) proceeding after an employee refusal
to cross a picket line, or to handle goods or perform any service (etc.) as provided
in article 16. This was a proceeding under Section 10(1) on a petition by the
Regional Director for injunctive relief pending final adjudication by the Board of
certain alleged unfair labor practices. The facts as related (page 298) clearly show
litigable issues-an impasse in management -union negotiations and a subsequent
4 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959,
U S Government Printing Office 1959, vol. 2, pp. 1700, 1702
5 Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. V.
NL.R.B. (Sand Door & Plywood Co.), 357 D.S. 93, 98-99, 106-107.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike and alleged violations of Section 8(b) (4) (A) ( i) and (ii) and Section 8(e) of
the Landrum-Griffin Act. The district judge wrote:
It is admitted that the old contract contains certain secondary boycott clauses
which, although lawful at the time the contract was made, became unlawful on
November 13, 1959, the effective date of the new amendments. For that reason,
petitioner further alleges that the arrangements made on November 25, 1959,
by Respondent Union, Local 17, with these independent lithographic firms, con-
cerning operations under the conditions of the old contract, constitute an un-
lawful agreement within the meaning of Section 8 (e).
With respect to the other Respondent Union, the International, it is alleged,
established and admitted, that it has approved and participated in the acts and
conduct of its Local 17.
Local 17 went on strike after an impasse was reached in negotiations, principally
because the Respondent Unions demanded the inclusion of some five clauses, of which
two at least (the "struck work" clause and the "chain shop" clause) were asserted by
the Regional Director to be in violation of Section 8(e). The court, after first con-
sidering the legislative background of the Landrum-Griffin Act and passing on the
constitutionality of Section 8(e), denied the Respondent Unions' motion to dismiss
and granted the motion of the Regional Director for a temporary injunction, pur-
suant to Section 10(1) of the Act, pending final adjudication before the Board.
From the result of this case, I reason that a Section 10(1) injunction would not
have been issued by the district judge except upon a showing of "reasonable cause";
there, the current strike. If in that case the General Counsel elected to ask for a
Section 10(1) remedy, it necessarily followed that he must have filed his complaint
asserting an affirmative breach, and not a negative breach, of Section 8(e). As
Mr. Justice Frankfurter wrote in Local 1976, United Brotherhood of Carpenters,
et al., v. N.L.R.B. (Sand Door) (page 99) :
Congress has not seen fit to protect these other persons or the general public
by any wholesale condemnation of secondary boycotts, since if the secondary
employer agrees to the boycott, or it is brought about by means other than
those proscribed in Section 8(b) (4).(A), there is no unfair labor practice.
And (page 108):
Certainly the voluntary observance of a hot cargo provision by an employer does
not constitute a violation of Section 8(11>)(4)(A), and its mere execution is
not . . . prima facie evidence of prohibited inducement of employees.
The language of the Supreme Court applicable to Section 8(b)-(4)(A) there, is
just as applicable to the language of Section 8(e) 'here. Section 8(e) does not
include a "wholesale condemnation of secondary boycotts"; nor does the mere
existence of the hot cargo provision (article 16) agreed to by the Union and the
Company constitute a violation of Section 8(e). In Local 357 International Brother-
hood of Teamsters, etc. v. N.L.R.B. (Los Angeles-Seattle Motor Express), 365 U.S.
667, the Supreme Court has decided that the mere existence of possible action under
contractual provisions inherently opposed to the "closed-shop" provisions of the Act
may not be held illegal per se, and that the Board is confined to determining whether
an agreement containing such provisions has, in fact, been used to discriminate in
regard to hire or tenure, term or condition of employment. In a companion case,
N.L.R.B. v. News Syndicate Company et al., 365 U.S. 695, Mr. Justice Douglas, for
the Court wrote:
Finally, as we said in Teamsters Local 357 v. Labor Board, decided this day,
ante, 365 U.S. 667, we will not assume that unions and employers will violate
the Federal Law, favoring discrimination in favor of union members against
the clear command of this Act of Congress. As stated by the Court of Appeals,
"in the absence of provisions calling explicitly for illegal conduct, the contract
cannot be held illegal because it failed affirmatively to disclaim all illegal ob-
jectives." 279 F. 2d, at 330.
The element of violation here lacking is a litigable issue, in the sense that there
has been no enforcement or attempted enforcement, or affirmative action, of Section
8(e) which would constitute a violation of that section of the Act. I cannot find
that the entering into of the kind of agreement described in Section 8(e) is a per se
violation thereof; nor do I believe this conclusion to be inconsistent with the desire
of the Congress to exert tighter restraint against secondary boycotts. If affirmative
THE PERRY RUBBER COMPANY 225
action proscribed under Section 8(e) is taken, the remedy is provided by statutory
scheme.
CONCLUDING FINDINGS OF FACT
1. Article 16 of the collective-bargaining agreement protects the rights of indi-
vidual employees in their determination whether or not they are to honor a picket
line, or the performing of any work whatsoever in connection with the handling or
performing of any service whatsoever on goods, products, or materials coming from
or going to the premises of an employer where there is any controversy with a union.
2. Said article 16 in no way requires the employer to cease or refrain or to agree
to cease or refrain from handling, using, or otherwise dealing in any of the products
of any other employer, or to cease doing business with any other person.
3. The Board's decision in the representation case, 129 NLRB 321, is not a deter-
mination that article 16 is per se a violation of Section 8(e) of the Art.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. Mary Feifer, d/b/a American Feed Company, is an individual proprietorship
with its principal office, plant, and place of business in the Bronx, city of New York,
State of New York, where she is there engaged in the processing of bakery salvage
for use in the sale and distribution of animal feed and related products.
The Respondent is and has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
3. Neither the Respondent Employer nor Respondent Union have engaged in or
are engaging in unfair labor practices affecting commerce within the meaning of
Section 8(e) and Section 2(6) and (7) of the Act.
4. The complaint herein should be dismissed.
[Recommendations omitted from publication.]
The Perry Rubber Company and Local Union No. 601 , United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO. Case No. 8-CA-2257. September 2O, 1961
DECISION AND ORDER
On May 9, 1961, Trial Examiner John P. von Rohr issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
133 NLRB No. 26.
624067-62-vol. 133-16